DPP publishes Code used by HSE to determine who is prosecuted

The Director of Public Prosecutions, Keir Starmer, QC, has published a new edition of the Code for Crown Prosecutors, the overarching document that guides prosecutors and police in deciding whether or not to charge a suspect.

The new Code applies to HSE officials when deciding on the approval of prosecutions proposed by investigating Inspectors. Changes to the Code following feedback to the consultation include:

Key evidential questions – additional clarification on the question of whether there is sufficient evidence to prosecute, including more detail on the three questions prosecutors should ask themselves, i.e. whether the evidence can be used in court, whether it is reliable and whether it is credible

Impact on victims health – greater clarity on the effect of a prosecution on the victim’s health, setting out that if there is evidence that a prosecution is likely to have an adverse impact on the victim’s health that it may make a prosecution less likely, taking into account the victim’s views

Guidance and proportionality – a clear reference to the CPS website where specific policies and guidance, for prosecutors to use in conjunction with the Code, may be accessed by the public. The Code retains reference to proportionality as a consideration under the public interest stage of the test, which was included in the version on which the public was consulted. Proportionality previously featured in the versions of the Code in 1986 and 1992.

Mr Starmer said:

“As I have said previously, the inclusion of proportionality represents a common sense approach to ensure prosecutors and police are prioritising the right cases to prosecute from the start.

The majority of the respondents to the consultation who made comments relating to proportionality were in favour of the concept, which is intended to avoid bringing into the system cases in which criminality could be better addressed by other, more appropriate means.

This is the second version of the Code published by Mr Starmer and the seventh to date.

Comment

The new clause on proportionality states that prosecutors should consider whether prosecution is proportionate to the likely outcome.

Prosecutors may consider (a) the cost to the prosecutor and (b) the need for effective case management e.g. “in a case involving multiple suspects, prosecution might be reserved for the main participants in order to avoid excessively long and complex proceedings.”

This clause could affect the approach HSE adopts to potential defendants in the construction sector where there is often an number of duty holders involved in single incidents. The outcome may be that just one or two duty holders are selected for prosecution and held to account for the incident.